DEP vs. EPA

Who’s Protecting Pennsylvania’s Water?
The scramble over regulating PA’s booming Natural Gas Industry raises a centuries old American debate: Who will ultimately regulate it, the Feds or the State? Will it be PA’s Tommy Corbett and Mike Krancer or EPA’s Lisa Jackson and Shawn Garvin? Or will this foursome somehow find a way to work in tandem on the crucial issue of preventing and responding to the overwhelming threat of toxic water and air pollution from fracking? A little synergy here would go a very long way. Maybe instead of a Beer Summit, we need a Tap Water Summit.

The EPA
Most people are under the misapprehension that we are fully protected by the Environmental Protection Agency. Unfortunately, the EPA of today is nothing like the government agency formed in 1970. In terms of identifying and regulating environmental hazards, its role has been reduced to narrow tasks such as recommending guidelines for plans to deal with contaminating spills and other emergencies. In fact, the EPA’s funding is at the lowest point since its inception. But defunding is only a single salvo the Right Wing assault on the EPA.

Remember Christine Whitman, former Governor of New Jersey and first Head of the EPA under Bush? In early 2001, the EPA produced a report detailing the expected effects of global warming in each US state. The report was dismissed by President Bush who called it the work of “the bureaucracy.” [SOURCE: Wikipedia]

On September 18, 2001, responding to concerns over toxic air pollution from the 9/11 attacks, Whitman infamously said: “Given the scope of the tragedy from last week, I am glad to reassure the people of New York and Washington, D.C. that their air is safe to breathe and their water is safe to drink.” In early 2003, a report by the EPA’s inspector general determined that such assurances were misleading, because the EPA “did not have sufficient data and analyses” to justify the assertions when they were made.

In July 2003, the EPA’s Office of Solid Waste and Emergency Response gave extensive documentation supporting many of the inspector general’s conclusions, and carried some of them further still. The report found that the White House had “convinced EPA to add reassuring statements and delete cautionary ones” by having the National Security Council control EPA communications after the September 11 attacks. On June 27, 2003, after having several public conflicts with the Bush administration, Whitman resigned from her position to “spend more time with her family.”

However, in a 2007 interview, Whitman stated that Vice President Dick Cheney’s insistence on easing air pollution controls, not the personal reasons she cited at the time, led to her resignation. She said he pushed the EPA to institute a new rule allowing large polluting plants to make major alterations without installing costly new pollution controls. Refusing to sign off on the new rule, Whitman announced her resignation. Whitman decided that President Bush should have an EPA administrator willing to defend the new rule in court, which she could not bring herself to do. Federal judges later overturned the new rule, saying it violated the Clean Air Act.

Adding Insult to Injury
In 2005, Bush signed the Energy Act, exempting Industrial Gas Drillers from compliance with the Clean Air Act (1970) and the Safe Drinking Water Act (1974), quietly scuttling these sound environmental laws with what has become known as “The Halliburton Loophole.” A bill proposing to close this loophole, the FRAC Act, has been introduced in Congress the 112th congress. This is its third trip to the legislature, yet it remains “just a bill, sittin’ on Capitol Hill.”

The FRAC Act [H.R. 2766; S. 1215]
If enacted, the laws drafted in the Fracturing Responsibility and Awareness of Chemicals Act will close the 2005 loophole inserted into the Safe Drinking Water Act [SWDA] and require gas drillers to disclose the chemicals they use in the hydraulic fracturing process. The House bill was introduced by representatives Diana DeGette (D-Colo.), Maurice Hinchey (D-NY) and Jared Polis (D-Colo.). The Senate version was introduced by Bob Casey (D-PA) and Chuck Schummer (D-NY). On March 24, 2011, the FRAC Act was re-introduced in the 112th United States Congress. The bill has gained a small measure of traction among Democrats and Independents. The Gas Industry currently opposes the legislation.

Great for the States
After 2005, the responsibility of regulating the Natural Gas Industry fell to the states. And Pennsylvania, which was known to have a large deposit of natural gas trapped deep within the Marcellus Shale formation, was suddenly of great interest to drillers who had just figured out how to hydraulically fracture a gas well not only vertically, but also horizontally. Suddenly, rural pockets of PA began experiencing a Boom Time as gas exploration and extraction activities burgeoned. Gas exploration began in the northwest, in the Wilds, and it quickly spread across the Endless Mountains and into the Northeast. In 2010, responding to public concern over drinking water safety, New York State placed a moratorium on new well permits until further study is concluded. As a result, investment in frack-friendly Pennsylvania skyrocketed.

Before long, in town halls and community centers across Pennsylvania, the debate over water and air pollution from the Industrial Gas boom began to rage, literally fracturing otherwise peaceful communities. Those who were suddenly making boatloads of money faced opposition from neighbors who feared land degradation, water pollution and disease. In 2010, the Oscar-nominated documentary, Gasland, painted a compelling portrait of the death of the American dream in Damascus, PA, making it ground zero in the fight against fracking. Landowners say they don’t want water people telling them what to do, yet water activists insist that our most precious resource is at grave risk. All the arguments in favor of Natural Gas Drilling Permits are economic, while all the reasons to maintain the current moratorium and proceed with extreme caution are based in science.

Disposing of massive volumes of the highly toxic, radioactive bi-product known as “frack water” has become a major industry dilemma. It is not economically or logistically feasible for aging municipal water treatment facilities to remove the 200+ chemicals which include radioactive solids, carcinogens, neurotoxins and known endocrine disruptors.

Currently in Pennsylvania, millions of gallons of toxic, radioactive frack wastewater are sitting in open double-lined, bermed-up pools near well bores, evaporating methane and formaldehyde into the air; or sloshing around in the back of a tanker truck barreling down what once was a quiet, county road; or being injected back down into the ground for another frack. Whatever’s left is distilled and deposited in a wastewater treatment facility, upstream from some poor soul’s drinking water supply, or swept under the proverbial rug into a deep injection well in New York or Ohio to be dealt with in another lifetime.

The PA DEP: Then and Now
These days, it’s the Pennsylvania Department of Environmental Protection’s responsibility to uphold the Constitution of Pennsylvania and ensure every citizen’s right to clean water and air, now and for future generations. The politically appointed DEP is the sole agency charged with upholding our state’s environmental laws.

The PA DEP was formed in 1992 when then Governor Tom Ridge replaced the 25-year-old Pennsylvania Department of Environmental Resources with two new agencies, the DEP and the Department of the Conservation of Natural Resources, fulfilling a campaign promise to split the state’s environmental regulatory functions from its resource management actions. The legislation was intended to underscore the importance Pennsylvania places on its parks and forests and publicly recognize “something we already know, Pennsylvania’s parks, forests, recreational assets and tourism attractions are second to none in the nation.”

Environmental groups were split on the legislation. Some, such as The Nature Conservancy, the Pennsylvania Environmental Council and the Rails-to-Trails Conservancy supported the breakup, while others, such as the Sierra Club, opposed the move.

“We were opposed fundamentally to creating a barrier to the management of our air and water resources and the management of our public lands,” said Jeff Schmidt, who headed the state chapter of the Sierra Club. “This further distances professionals in those agencies.” Schmidt also noted that air pollution can impact forest health, and that oil and gas drilling and timber activities can affect water quality, but those activities will now be housed in different agencies, creating an artificial barrier for managers. SOURCE: Karl Blankenship, Chesapeake Bay Journal, 1995

“At the end of the day, my job is to make sure gas is done and gas is done right,” said Secretary Krancer of the PA Department of Environmental Protection upon his appointment in April. According to its website, however, the PA DEP mission is to “protect Pennsylvania’s air, land and water from pollution and to provide for the health and safety of its citizens through a cleaner environment,” and to “work as partners with individuals, organizations, governments and businesses to prevent pollution and restore our natural resources.” SOURCE: depweb.state.pa.us

In March 2011, sworn testimony of four DEP staffers, responsible for processing permits, suggested that applications for natural gas well permits are rubber-stamped, rushed through with little scrutiny and rarely rejected. The staffers’ statements indicate that DEP regulators are overburdened – and possibly ignoring environmental laws – as they struggle to deal with an unprecedented drilling boom.

SOURCE: The Times-Tribune

For his part, Governor Corbett has proven his enthusiasm for gas drilling by repealing a 4-month-old policy that prevented natural gas drilling in state parks, which the former director of Department of the Conservation of Natural Resources stated could hurt recreation and the environment of parks in the Western part of the state.

In April, 2011, PA DEP reported elevated levels of bromide, a chemical used in the natural gas drilling process, in rivers and streams in the Western part of the state. It called on companies drilling in the Marcellus Shale to stop taking wastewater to 15 treatment plants by May 19. Krancer further stated, “if operators would stop giving wastewater to facilities that continue to accept it under the special provision, bromide concentrations would quickly and significantly decrease.” SOURCE: The Times Leader

Today’s DEP seems to be taking its cue from Corbett, far more intent upon working with drillers on compliance than limiting drilling to a pace which it can effectively regulate. The fact is, the PA DEP is understaffed and ill-equipped to handle the massive workload that is piling up in their six regional offices.

“The lack of technical oversight applied by PA DEP and the neglect of basic anti-degradation issues painfully illustrate that Pennsylvania is churning out gas well drilling permits as fast as possible, glossing over the most fundamental environmental aspects of a review such as proximity to special protection waters,” said Tracy Carluccio, Deputy Director of Delaware Riverkeeper Network. “How can anyone feel safe if PA DEP is asleep at the wheel like this? This kind of disregard by the environmental agency in charge of drilling in the State is scandalous; no wonder there are so many accidents and pollution incidents across the Commonwealth.”

The Health of the Commonwealth
While leaving the matter of regulation to the states may have seemed like a viable, conservative option before the Gas Boom, it’s entirely impractical now. PA DEP, and by extension the Corbett Administration, may be unwilling to relinquish regulatory control but clearly it needs the EPA, and even the DRBC in the regulatory structure if gas it to “get done” at all.

In February, 2011, the EPA announced that it proposes to characterize toxicity in almost every stage of the hydraulic fracturing life-cycle, and plans to summarize all available data obtained on chemicals and naturally occurring substances used and released during the hydraulic fracturing process in order to characterize and understand potential human health effects. The study, due to be completed later this year, will include:
1) Water Acquisition
2) Chemical Mixing
3) Well Injection
4) Flowback and Produced Water
5) Wastewater Treatment and Waste Disposal

It’s more than a matter of check and balances, or even appeasing the rapidly growing contingent of vocal tree-huggers. The Gas Industry itself needs clarity and intra-state regulatory consistency to move forward, to improve their drilling and waste disposal practices in Pennsylvania, and to avoid liability exposure and excessive fines.

The PA DEP should also support the FRAC ACT because it would help them do their job more effectively. If drillers were required by law to publicly disclose fracking chemicals, the agency would have already known what chemicals were exploding from Chesapeake’s LeRoy, Bradford County well blowout on April 19. They would not have had to ask the company for it on April 22.

Since Krancer assumed the helm in Pennsylvania, much has been made of the strongly worded, at times bristling, correspondence between his office and EPA Regional Administrator, Shawn M. Garvin. On May 18, 2011 The Legal Intelligencer asked Joseph Freudenberg, chair of Philadelphia-based Dilworth Paxson’s environmental group, for his take on the potentially brewing animosity. Freudenberg said, “Marcellus activity is moving forward so quickly, I think you have both the federal EPA and the DEP reacting to that and trying to appropriately manage it.”

In an e-mailed statement, EPA spokeswoman Terri White said the “rapid expansion of natural gas drilling operations in Pennsylvania presents enormous challenges for regulators at all levels. To ensure that drinking water, public health and the environment are protected, EPA is continuing to work with PADEP and other state officials who are on the frontlines of permitting and regulating natural gas drilling activities.”

Katherine Gresh, a spokeswoman for the DEP, issued a similar e-mailed statement: “As the frontline regulatory agency of the natural gas industry in Pennsylvania, we work with EPA and will continue to do so.” SOURCE: Zach Needles, The Legal Intelligencer

Perhaps it’s an encouraging sign that EPA and PA DEP are using the same language, even as they are jockeying for position. With all that toxic, carcinogenic wastewater out there, and all that’s yet to be produced, Pennsylvanians can only hope that this signals a new beginning. Never in the history of our Commonwealth has the need for two ideologically opposed agencies to coordinate their efforts been so great.